FAYETTE COUNTY ATTORNEY CRITICIZED FOR IMPOSING MEDIATION WITHOUT AN ACTION PENDING AND WITHOUT ORDER OF THE DISTRICT COURT – Justice Scott opposes mandatory mediation program imposed by County Attorney

The Kentucky Supreme Court disfavors a mandatory mediation program operated by the Fayette County Attorney. The court found that the use of the name of the Admin. Office of the Courts to give impression the courts were involved in endorsing this program was improper.

The Fayette County Attorneys’ program was ordering mediation before any criminal charge was filed, and therefore the court had no jurisdiction. Mediation orders must come from a court and not from a County Attorney. Justice Scott concurred in result only, but clearly stated that mediation orders must come from a court which has jurisdiction of an actually pending case. The county attorney’s pre-arrest mediation “order” is not supported by any court.

See: Minix v. Roberts, 350 S.W.3d 449 (Ky., 2011)

“While it is true, as the Court of Appeals held, that original jurisdiction to consider an action arising from district court is vested in circuit court, 4 we agree with Appellant that this action did not arise from the district court. Appellant was not directed to attend mediation by an order of the district court, despite the fact that the summonsing documents were apparently designed to resemble or simulate Court of Justice documents.
Roberts’s program materials describe it as a “precursor” to a district court charge, arranged by the county attorney before the district court ever acquires jurisdiction over the matter.
Until the district court issues some process, ordinarily a summons or warrant, or a defendant is presented to the court following a warrantless arrest, the district court has no jurisdiction over the persons involved in the dispute and there is no criminal “case” to be referred. 5 Therefore, Roberts’s mediation program is not a function of the district court, and does not arise from the district court.
Further, we do not find in the record an order of a district judge, or of any other judicial officer, directing Appellant to attend mediation. At most, we find a 1992 order of the Fayette District Court generally establishing a “Mediation Pilot Project” by which Fayette district judges may “refer to mediation any civil or criminal case.” The “judge,” who the summonsing documents claim to have ordered the mediation, is never identified in the record, leading to a reasonable conclusion that there was none. Notably, Appellant’s writ petition did not seek relief against any judge, named or unnamed.”

While I concur on alternative grounds, my primary concern is the continued practice of referring persons to an expensive mandatory mediation program, exercised without court discretion.

Thus, although I join the majority in denouncing the appropriation of the seal of the Court of Justice and the name of the Administrative Office of the Courts, I do not believe this denouncement goes far enough.

Simply put, no court, and certainly no county attorney, should set up a mandatory mediation program prior to an action being instigated, especially when the cost of such a program is to be paid by the attendees. And, even then, such a mediation order should be exercised within the court’s discretion.

Because I find this mandatory practice to be particularly objectionable, I am compelled to concur in result only.